King v Brown (No 4) - [2022] NSWSC 1402

Supreme Court

New South Wales

Medium Neutral Citation: King v Brown (No 4) [2022] NSWSC 1402
Hearing dates: 13 October 2022
Date of orders: 17 October 2022
Decision date: 17 October 2022
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
1. The judgment for CAD2,134,924 made on 2 September 2021 in orders 1, 4 and 7 be corrected by being reduced by CAD2,030,903.90 to CAD104,020.10, effective from the time that the orders were made.
2. There be no order as to the costs of the motion.

Catchwords:
JUDGMENTS AND ORDERS — Amending, varying and setting aside — Correction under slip rule —where proceeds of sales mistakenly not taken into account in original orders made — where error occurred as a result of inadvertence by legal representative — original orders corrected
COSTS — no costs order pursued against legal representative — no order as to costs made

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), r 36.17

Cases Cited:
Brown v King [2022] NSWCA 75
King v Brown [2020] NSWSC 1010
King v Brown (No2) [2021] NSWSC 1060
King v Brown (No3) [2021] NSWSC 1116
L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590; [1982] HCA 59

Category: Principal judgment
Parties: Mr S King (Plaintiff)
Mr G Brown (First Defendant)
Mrs B Brown (Second Defendant)
Riverpines Vineyard Pty Ltd CAN 093 689 804 (Receiver and Manager Appointed) (Third Defendant)
Representation:
Counsel:
Mr P Newton (Plaintiff)
Mr M Hazan (Plaintiff)
Solicitors:
Anne McDonald Lawyers (Plaintiff)

File Number(s): 2020/94610

JUDGMENT

Judgment for possession of land at Milbrodale owned by Mr and Mrs Brown was given in favour of Mr King in 2020 by Davies J, in circumstances where Mr and Mrs Brown’s unrepaid borrowings had increased to “$2,314,093.43 (CAD $2,342,756.00)”: King v Brown [2020] NSWSC 1010 at [1]-[5].
A dispute over calculation of what had to be repaid and a cross-claim brought by Mr and Mrs Brown were dealt with in King v Brown (No 2) [2021] NSWSC 1060. There I concluded that the amended cross-claim had to be dismissed and directed that final orders be formulated to reflect the conclusions which I had reached as to the disputed calculations. In King v Brown (No 3) [2021] NSWSC 1116 final orders were made in terms sought by Mr King, for reasons there given.
There was not then any suggestion that proceeds of sales, which had to be taken into account in the orders made, had been received.
Mr and Mrs Brown later appealed and Mr King sought an order for security for costs. His application was dismissed: Brown v King [2022] NSWCA 75. On the hearing of Mr King’s motion he made a concession that while also not raised in the notice of appeal, the September 2021 orders had not accurately recorded the amounts Mr and Mrs Brown still owed him. That was because in the calculations considered in King v Brown (No.3), account had not been taken of the fact…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading King v Brown (No 4)

Details

AGLC: King v Brown (No 4) [2022] NSWSC 1402
Case: [2022] NSWSC 1402
Decision Date: 17 October 2022

CaseChat Overview and Summary

The case of King v Brown (No 4) involved the parties, King and Brown, in a dispute regarding the correction of judicial orders. The dispute was brought before the court which was required to address issues relating to the amendment, variation, and setting aside of prior court orders. Specifically, the court had to determine whether it was appropriate to correct the original orders made, given that the proceeds from sales had been mistakenly omitted in those orders. The error had arisen from an inadvertent oversight by the legal representative involved.

The court deliberated on whether the error warranted correction under the slip rule, which allows for the rectification of clerical or typographical errors in judicial documents. It considered the nature of the error, the potential impact on the parties, and the circumstances surrounding the oversight. The court concluded that the error was indeed clerical and that it was appropriate to correct the original orders to include the proceeds of sales. The court also noted that the error was due to inadvertence by the legal representative and not a result of any deliberate misconduct.

In its judgment, the court corrected the original orders to accurately reflect the proceeds of sales that had been omitted. The court took into account the need for fairness and accuracy in the judicial process. Additionally, the court decided not to pursue any costs order against the legal representative, as the error appeared to be genuinely inadvertent. Consequently, no order as to costs was made against the legal representative. The court's decision ensured that the corrected orders were aligned with the true facts and circumstances of the case, thereby providing a fair resolution to the dispute between the parties.

Orders